Secret Evidence Prevents Basic Fairness

(St. Petersburg Times)The United States has an anti-Arab, anti-Muslim bias that should concern all freedom-loving citizens.

This bias -- held by many of the nation's highest-ranking federal officials, many in the Immigration and Naturalization Service -- is clearly at the core of a noxious immigration policy called "secret evidence." It is a provision of the 1996 Anti-Terrorism and Effective Death Penalty Act that Congress passed in response to the World Trade Center and Oklahoma City bombings.

Intended to protect U.S. citizens, the anti-terrorism measure undermines some of the nation's cherished constitutional protections. Specifically, the provision lets the government use informant testimony or other forms of secret evidence to imprison and deport even legal immigrants suspected of terrorism without letting the suspects cross-examine their accusers.

As of this writing, about two dozen immigrants are involved in secret evidence cases in various states. Here in the Tampa Bay area, Mazen Al-Najjar, a 43-year-old father of three and suspended professor at the University of South Florida, has been denied bail and locked up on secret evidence for nearly three years without being charged with a crime. Needless to say, he has been away from his wife and children.

Al-Najjar's woes began in 1995, after press reports suggested that the World and Islam Studies Enterprise (WISE), a University of South Florida think tank that Al-Najjar managed, was a fundraising vehicle for terrorists. His troubles mounted after the head of Palestinian Islamic Jihad was gunned down on the Mediterranean island of Malta.

Two days later, another Tampa Muslim, Ramadan Shallah, who had been an instructor at USF and a member of WISE, became Islamic Jihad's new leader and surfaced in the Middle East.

Then-USF President Betty Castor launched an investigation into the activities of WISE, but officials could not link the group to terrorist cells either domestically or in the Arab world. The results of the investigation, however, failed to help Al-Najjar.

The only ray of hope for the Palestinian refugee in this long struggle came on Wednesday, when U.S. District Judge Joan A. Lenard ruled that INS must set a new hearing to determine if Al-Najjar should be bonded out of jail and reunited with his family while awaiting appeal of a deportation order. The result also may be that Al-Najjar can be freed on bond until he has a deportation hearing for having overstayed his student visa.

Essentially, Lenard said that the one-sentence capsule of the secret evidence provided to Al-Najjar was not enough. It stated that he "associated with the Palestinian Islamic Jihad."

In her 71-page opinion, Lenard, quoting another case, writes: "Without an opportunity for Petitioner to confront the information demonstrating his alleged "association,' there was no adversarial check on the quality of the information on which the INS relied. The plea that evidence of guilt must be secret is abhorrent to free men because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected."

Lenard's message is a simple message: Although Al-Najjar may eventually be directly linked to terrorists, INS and the courts have treated him unfairly. More than likely, the new hearing will force INS to do more than give the accused a one-sentence summary of the evidence against him.

The U.S. Supreme Court has ruled that aliens have the same rights of due process that others on American soil have. If INS has incriminating evidence against the man, the agency has a constitutional duty to produce it.

Is the Sixth Amendment not clear? It reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Of Judge Lenard's opinion of his client's case, attorney David Cole, Georgetown University law professor, told the St. Petersburg Times: "I think it's a very strong renunciation of the government's practice of using secret evidence and holds that immigrants have the right to a fair trial."

Again, Al-Najjar's future depends on the strength of the secret evidence in his files. In California, New Jersey and New York, judges have ruled for the accused after seeing the so-called secret evidence against them and after hearing their defenses. This is all that Al-Najjar is requesting: a fair day in court.

If his case mirrors that of another USF professor, Sami Al-Arian, who is Al-Najjar's brother-in-law, he will be freed. Al-Arian, also a member of WISE, was accused of associating with terrorists and denied citizenship based on secret evidence. He was suspended from teaching computer science pending the outcome of the secret-evidence hearing.